Howard v. Valentine , 20 Cal. 282 ( 1862 )

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring.

This is an action under the thirteenth section of the Forcible Entry and Detainer Act. The complaint asks for restitution of the premises, and for back rents, amounting to five hundred dollars. The defendants demur, claiming a want of jurisdiction and a misjoinder of parties. The Court below sustained the demurrer, and dismissed the suit.

We think the action of the Court in this respect was erroneous. Bo far as the jurisdiction is concerned, the objection only extends to a part of the relief asked. Excluding this the objection is removed, and the Court should have directed an amendment, or disregarded the objectionable matter. The question will arise as to what rents the plaintiff is entitled to recover, and it is proper that a construction should be given to the provision upon that subject. Section twelve of the Act provides that “ damages shall be assessed as well for waste and injury committed upon the premises, as for the rents and profits during the detainer,” and that the verdict shall find the monthly value of the rents and profits. The effect of this provision is to put rents upon the same footing with other damages, their amount during the period of detention to be ascertained" by estimating their monthly value. This construction, in the cases provided for in section thirteen, limits the recovery to rents accruing after the possession of the tenant has become unlawful, and rents prior to that time are not recoverable. The rents to be recovered are such as accrue during the detention, and the detention alluded to is that authorizing the prosecution of a suit. The amount of the rents is immaterial, and whether it is one dollar or one thousand dollars, the jurisdiction is the same. The error in this case is, that rents are claimed which accrued anterior to the detention, and before the steps had been taken vesting in the plaintiff a right of action.

There is nothing in the demurrer on the ground of a misjoinder of parties. The principal defendant is a married woman, doing business as a sole trader, and the objection is that her husband is joined in the action. This is a matter of which she has no right to complain, and as he is in possession with her, we do not see upon what principle he can object. No relief is asked against him except to be restored to the possession.

The other points of the demurrer are not noticed, for the reason that they are not relied upon by counsel.

The judgment is reversed, and the cause remanded for further proceedings.